Citation NR: 9727610
Decision Date: 08/08/97 Archive Date: 08/19/97
DOCKET NO. 96-09 870 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUE
Entitlement to a total disability evaluation based upon
individual unemployability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Herman, Associate Counsel
INTRODUCTION
The veteran had active military service from October 1941 to
October 1945. This appeal arises from an October 1995 rating
decision of the Boston, Massachusetts, regional office (RO)
which denied the veteran entitlement to a total disability
evaluation based on individual unemployability. The notice
of disagreement was received in October 1995. The statement
of the case was issued in February 1996. The veteran’s
substantive appeal was received in February 1996.
CONTENTIONS OF APPELLANT ON APPEAL
In essence, the appellant contends that his service connected
disabilities prevent him from obtaining gainful employment.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence supports an
allowance of a total disability evaluation on the basis of
individual unemployability.
FINDINGS OF FACT
1. The veteran’s claim for a total disability evaluation
based on individual unemployability is plausible, and
sufficient evidence for an equitable disposition of the
veteran's claim was obtained by the RO.
2. The veteran is service-connected for arthritis of the
lumbar spine rated 40 percent disabling, arthritis of the
cervical spine rated as 30 percent disabling, a bilateral
sensorineural hearing loss rated as 20 percent disabling,
degenerative arthritis of the dorsal spine rated as 10
percent disabling, residuals of a right wrist fracture rated
as 10 percent disabling, and tinnitus aurium rated as 10
percent disabling; the veteran has a combined disability
evaluation of 80 percent.
3. The veteran has an elementary school education which he
received overseas, and he has not worked since 1977.
4. The veteran is unable to pursue substantially gainful
employment when consideration is given to his service
connected disabilities, his employment experience, and his
education.
CONCLUSIONS OF LAW
1. The veteran has stated a well-grounded claim for a total
disability evaluation based on individual unemployability,
and the Department has satisfied the duty to assist.
38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1996).
2. The criteria for assignment of a total disability
evaluation based on individual unemployability have been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.340,
3.341, 4.16 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
Service connection for a right wrist fracture, a bilateral
hearing loss, and myalgia of the lumbar muscles, subsequently
re-designated as arthritis of the spine, has been in effect
since the veteran was discharged from the military in 1945.
By a rating action dated in June 1976, he was granted service
connection for tinnitus aurium.
In January 1995, the veteran filed a claim for an increased
evaluation of his service-connected arthritic condition. At
that time, his service-connected disabilities were arthritis
of the cervical spine rated as 30 percent disabling,
arthritis of the lumbar spine rated 20 percent disabling, a
bilateral sensorineural hearing loss rated as 20 percent
disabling, degenerative arthritis of the dorsal spine rated
as 10 percent disabling, residuals of a right wrist fracture
rated as 10 percent disabling, and tinnitus aurium rated as
10 percent disabling. The veteran had a combined disability
evaluation of 70 percent.
The veteran was afforded a VA spinal examination in March
1995. At that time, he complained of bilateral upper
extremity numbness with radiating pain that extended the
entire length of his arm into his hands. He also stated that
his hands felt weak. He said that he experienced bilateral
neck pain and numbness that extended to his feet. He wore a
neck collar and bilateral knee braces. He walked with a
cane. On examination, the veteran’s cervical range of motion
was diminished in all planes. There was also a diminished
range of motion of the lumbar spine in all planes of
movement. His reflexes were plus one (1) throughout. There
was no obvious focal weakness to strength testing. There was
patchy sensory loss in all limbs. The impression was
cervical degenerative spine disease with subjective
complaints consistent with upper and lower extremity
radiculopathies. An updated electromyographic study was
recommended.
In April 1995, the veteran was afforded a VA
electromyographic study. Again, he described neck pain that
extended down his arms to his fingers. He stated that the
pain was worse with flexion and internal rotation of his
shoulder. He said that he experienced back pain that would
extend into his “joints.” He complained of a pins and
needles sensation occasionally in his knees. He stated that
he had weakness in his upper and lower extremities. On brief
physical examination, there was no atrophy of either the
upper or lower extremities. There was no consistent area of
decreased pin prick sensation. Strength testing was four (4)
minus to five (5) minus throughout. Reflexes were plus two
(2) in the brachial radialis, triceps, and biceps on the
right and plus one (1) in the biceps and triceps on the left.
There were trace reflexes in the brachial radialis on the
left. Reflexes were plus two (2) and symmetrical in the
quadriceps and Achilles tendons bilaterally. Babinski test
was “downgoing” bilaterally. Following nerve conduction and
needle examinations, the impression was moderate right carpal
tunnel syndrome, mild left carpal tunnel syndrome, and mild
demyelinated sensory peripheral neuropathy in the lower
extremities. The examiner noted that there was no evidence
of either lumbosacral or cervical radiculopathy.
Medical records from the Brockton VA Medical Center (VAMC)
dated October 1992 to July 1995 indicated that the veteran
received evaluations and treatment for, but not limited to,
an eye condition, a heart condition, a bilateral inguinal
hernia, and his service-connected arthritis condition.
Significantly, those records show that the veteran had
limitation of motion of the cervical and lumbar spine, and
that he complained of pain in the upper and lower
extremities. A treatment note dated in October 1993
indicated that the veteran’s cervical spine was limited to 20
degrees of forward flexion, 10 degrees of extension, and 30
degrees of rotation. Lumbar forward flexion was limited to
30 degrees. The impression was cervical and lumbar
spondylosis. In January 1995, his osteoarthritis was
reported to be stable. A treatment report dated in February
1995 noted that the veteran had a past surgical history for
pacemaker placement in 1976 and 1995.
Considering the evidence of record, the RO issued a rating
decision in August 1995 that increased the veteran’s service-
connected arthritis of the lumbar spine to 40 percent
disabling. The 30 percent disability rating assigned to his
arthritis of the cervical spine was continued. Thus, his
service-connected disabilities were arthritis of the lumbar
spine rated 40 percent disabling, arthritis of the cervical
spine rated as 30 percent disabling, a bilateral
sensorineural hearing loss rated as 20 percent disabling,
degenerative arthritis of the dorsal spine rated as 10
percent disabling, residuals of a right wrist fracture rated
as 10 percent disabling, and tinnitus aurium rated as 10
percent disabling. The combined disability evaluation was 80
percent.
In August 1995, the veteran filed a claim for a total
disability evaluation based on individual unemployability.
Therein, he reported that he had worked as a mailman for 30
years, and that he had last worked in 1977. He indicated
that he had completed three (3) years of high school.
By a rating decision dated in October 1995, the veteran was
denied entitlement to a total disability evaluation based on
individual unemployability. The RO stated that there was no
evidence that the veteran’s service-connected disabilities
caused unemployability.
The veteran filed a substantive appeal in February 1996.
In April 1996, the veteran was afforded a personal hearing
before the RO. During the course of the proceeding, he
stated that his education was limited to elementary school.
He testified that he never went to high school. (His Army
Qualification Record shows the last school attended to have
been in Italy. His Report of Induction shows he completed
six years of grade school only.) Following his discharge, he
said that he went to work for the United States Postal
Service. He indicated that he worked in mail processing. He
recalled that he was forced into early retirement because of
his service-connected back and neck condition. He stated
that he was unable to physically perform the duties required
for his position. The veteran averred that the pain from
these conditions also hindered his ability to work. He
reported that a physician from the Postal Service recommended
his early retirement because of his service-connected
arthritis. He insisted that neither his pacemaker or his
nervous condition were factors in the physician’s
recommendation. He maintained that he was told by several
physicians at that time that he should not attempt to work
again because of his arthritis He stated that he enjoyed
working, and that he never wanted to leave the Post Office.
Acknowledging his ignorance of VA law, he said that he was
unaware that he could have filed for a total disability
rating based on individual unemployability.
The veteran asserted that his service-connected arthritis had
become increasingly worse over the years, and that there was
nerve involvement. He indicated that he wore a back brace, a
neck brace, and an elbow brace. He noted that he had worn a
back brace for nearly 30 years. He said that he used to go
the VA for treatment three (3) times a week, but that
budgetary restrictions limited him to monthly visits. He
stated that his tinnitus caused him to become dizzy. The
veteran reported that he was able to do some gardening, and
his doctors encouraged him to get exercise. Specifically, he
said that he could throw seeds on the ground and rake them
into the soil. He noted, however, that other family members
would do the digging in the garden and any other household
chore. He stated that he was only able to drive short
distances. He said that he was unable to sit, stand, or walk
for prolonged periods of time. In support of his claim, the
veteran submitted a copy of a workers’ compensation
physician’s report and letters of commendation from the
veteran’s regional postmaster.
Dated in September 1976, the workers’ compensation
physician’s report indicated that the veteran was evaluated
for complaints of limitation of motion with pain and muscle
spasm of the neck and back. The examiner stated that the
veteran had an inability to use his neck and back essential
to perform his regular duties. The examiner also reported
that the veteran had a bundle branch block which required a
pacemaker, and that that condition was a concurrent
disability. The examiner recommended future total
disability. The veteran’s neck and his overall condition
made any future return to his regular duties impossible.
In May 1996, the hearing officer denied the veteran’s claim
for a total disability evaluation based on individual
unemployability. The hearing officer stated that the
evidence of record showed that the veteran’s service-
connected disabilities had remained relatively stable over
the years. The hearing officer also indicated that the
veteran’s April 1994 electromyographic study had shown no
evidence of radiculopathy. Noting that the veteran suffered
from a heart condition that required a pacemaker, the hearing
officer concluded that the evidence of record did not
demonstrate that the veteran was unemployable due solely to
his service-connected disabilities. The veteran was
furnished a Supplemental Statement of the Case along with a
copy of the hearing officer’s decision.
II. Analysis
A. Well-grounded Claim
The first inquiry must be whether the appellant has stated a
well-grounded claim as required by 38 U.S.C.A. § 5107(a). A
well-grounded claim is one that is plausible. Murphy v.
Derwinski, 1 Vet.App. 78 (1990). In the context of a claim
for an increased evaluation of a condition adjudicated
service connected, an assertion by a claimant that the
condition has worsened is sufficient to state a plausible,
well-grounded claim. Proscelle v. Derwinski, 2 Vet.App. 629,
632 (1992). The appellant in the instant case has stated a
well-grounded claim.
Moreover, as all evidence necessary to an equitable
disposition of the veteran’s claim was obtained by the RO,
the VA has fulfilled its duty to assist. 38 U.S.C.A.
§ 5107(a); 38 C.F.R. § 3.159 (1995).
B. Total Disability Rating Based on Individual
Unemployability
VA regulation provides that a total disability will be
considered to exist when there is present any impairment of
mind or body which is sufficient to render it impossible for
the average person to follow a substantially gainful
occupation. Total disability may or may not be permanent. 38
C.F.R. § 3.340.
If a total disability rating is based upon a disability or
combination of disabilities for which the Schedule for Rating
Disabilities provides an evaluation of less than 100 percent,
it must be determined that the service-connected disabilities
are sufficient to produce unemployability without regard to
advancing age. 38 C.F.R. § 3.341. Total disability ratings
for compensation may be assigned, where the schedular rating
is less than total, when the disabled person is, in the
judgment of the rating agency, unable to secure or follow a
substantially gainful occupation as a result of service-
connected disabilities: Provided That, if there is only one
such disability, this disability shall be ratable at 60
percent or more, and that, if there are two or more
disabilities, there shall be at least one disability ratable
at 40 percent or more, and sufficient additional disability
to bring the combined rating to 70 percent or more. It is
the established policy of the Department of Veterans Affairs
that all veterans who are unable to secure and follow a
substantially gainful occupation by reason of service-
connected disabilities shall be rated totally disabled. 38
C.F.R. § 4.16(a)(b).
In this case, the veteran’s combined disability rating is 80
percent and his arthritis of the lumbar has been determined
to warrant a 40 percent disability evaluation. Therefore, he
meets the schedular disability requirement for consideration
under 38 C.F.R. § 4.16(a). He has stated that he has not
held a job since his early retirement from the Post Office in
1977, and that said employment necessitated physical labor.
He has testified that he has an elementary school education.
There is evidence of record that he suffers from significant
disability of the spine. The March 1995 VA examination
report indicated that the veteran’s cervical and lumbar spine
had a diminished range of movement on all planes. Moreover,
there is evidence that he currently uses a cane and wears a
back and neck brace. The record further reveals that the
veteran experiences a limitation of motion of the right
wrist, a bilateral sensorineural hearing loss, and tinnitus.
Although there are findings that the veteran has non-service
connected disabilities that could effect his employability,
the Board is convinced that the veteran’s service connected
disabilities have rendered him unemployable. Specifically,
the Board notes that no evidence has been associated with the
claims folder the refutes the veteran’s position, and none of
the recent VA medical records contain a specific opinion that
the veteran is, in fact, able to work with the degree of
arthritic disability described in the recent medical
evidence. Considering his extremely limited education
overseas, his employment experience limited to work involving
manual labor and his inability to engage in work involving
physical movement and strength, the Board concludes that the
veteran’s service-connected disabilities prevent him from
obtaining substantially gainful employment.
ORDER
Entitlement to a total disability evaluation based on
individual unemployability is granted, subject to the
applicable criteria governing the payment of monetary
benefits.
I. S. SHERMAN
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1997) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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